[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
No. 04-14356 ELEVENTH CIRCUIT
DECEMBER 21, 2005
THOMAS K. KAHN
BIA No. A95-552-332
JUAN CARLOS RUANO,
U.S. ATTORNEY GENERAL,
Petition for Review of an Order of the
Board of Immigration Appeals
(December 21, 2005)
Before DUBINA and KRAVITCH, Circuit Judges, and STROM*, District
*Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by
Juan Carlos Ruano petitions this court for review of the Board of
Immigration Appeals's ("BIA") final order which affirmed the Immigration
Judge's ("IJ") decision to deny Ruano asylum and withholding of removal.
The issue presented in the petition is whether Ruano provided substantial
evidence of past persecution entitling him to a presumption of future persecution.
In Adefemi v. Ashcroft, 386 F.3d 1022
, 1026-27 (11th Cir. 2004) (en banc),
cert. denied, 125 S. Ct. 2245
(2005), this court set forth the standard of review
regarding the substantial-evidence test in immigration cases:
This court reviews administrative fact findings under the highly
deferential substantial evidence test. Farquharson v. United States
Att[â€˜]y Gen., 246 F.3d 1317
, 1320 (11th Cir. 2001); Lorisme v. INS,
129 F.3d 1441
, 1444-45 (11th Cir. 1997). Under the substantial
evidence test, we view the record evidence in the light most favorable
to the agency's decision and draw all reasonable inferences in favor
of that decision.
We "must affirm the BIA's decision if it is â€˜supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'" [Al] Najjar v. Ashcroft, 257 F.3d 1262
, 1283-84 (11th Cir.
2001) (quoting Lorisme, 129 F.3d at 1444-45). Thus, we do not
engage in a de novo review of factual findings by the BIA. Similarly,
we cannot find, or consider, facts not raised in the administrative
forum, nor can we "â€˜reweigh the evidence from scratch.'"
Mazariegos v. United States Att[â€˜]y Gen., 241 F.3d 1320
, 1323 (11th
Cir. 2001) (quoting Lorisme, 129 F.3d at 1444-45); see also [Al]
Najjar, 257 F.3d at 1278 ("Courts of appeal sit as reviewing bodies to
engage in highly deferential review of BIA and IJ determinations. . . .
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Commensurate with this role, we cannot engage in fact-finding on
appeal, nor may we weigh evidence that was not previously
considered below."). In sum, findings of fact made by administrative
agencies, such as the BIA, may be reversed by this court only when
the record compels a reversal; the mere fact that the record may
support a contrary conclusion is not enough to justify a reversal of the
administrative findings. Farquharson, 246 F.3d at 1320 ("To reverse
a factual finding by the BIA, this Court must find not only that the
evidence supports a contrary conclusion, but that it compels one.");
see also 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of
fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary . . . ."); Kenyeres v. Ashcroft,
538 U.S. 1301
, ,123 S. Ct. 1386, 1388, 155 L. Ed. 2d 301
(2003) ("A reviewing court must uphold an administrative
determination in an immigration case unless the evidence compels a
conclusion to the contrary.").
386 F.3d at 1026-27.
After reviewing the record, reading the parties' briefs, and having the
benefit of oral argument, we are unable to review adequately the petition because
of the lack of specific findings on past persecution made by the IJ. Accordingly,
we vacate the BIA's order and remand this case to the IJ with directions to make
explicit findings about whether Ruano established past persecution and the
applicability of a presumption of a future threat to Ruano's life or freedom.
VACATED and REMANDED.
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